It has been reported that the Ministry of Home Affairs (MHA), Government of India, has taken a decision to reject the recommendation made by Justice Jeevan Reddy Commission to repeal the Armed Forces (Special Powers) Act, 1958 (AFSPA). It is noteworthy that almost for full 10 years, the previous UPA Government had failed to take any decision on the said recommendation, either this way or that way. The Economic Times has reported that the Union Home Minister Rajnath Singh has taken the above decision in-principle last month and the MHA will now soon take the matter to the Cabinet Committee on Security (CCS) for an official clearance to rejecting the Reddy Committee report “in its entirety”.

It may be mentioned that on 19.11.2004, the Government of India had constituted a 5-member committee headed by Justice Jeevan Reddy (a former judge of the Supreme Court) to review the provisions of the AFSPA. It had submitted its report on 06.06.2005. While this committee had recommended repeal of AFSPA, surprisingly it had also suggested making amendments to the Unlawful Activities (Prevention) Act, 1967 (UAPA) to achieve the purpose of AFSPA. Therefore, in effect, the recommendation of Justice Jeevan Reddy Committee to repeal AFSPA was of no meaning, since it had recommended that its provisions may instead be inserted in the Unlawful Activities (Prevention) Act. So, what difference it would have made, other than name of the Act being changed, since similar provisions of law would exist under a different law?

It is also noteworthy that the 2nd Administrative Reforms Commission headed by Shri Veerapa Moily (former law minister) had also endorsed the aforesaid Justice Jeevan Reddy Committee Report. For last about 10 long years, the Government of India had been considering amendments to AFSPA. But, due to the grim security situation in the North-East caused by the unlawful underground militant groups, who also receive some support from across the border, and due to strong opposition of army and other security and intelligence agencies, the Government was not able to act on the recommendations of the said committee. At the same time, the UPA Government was not able to muster courage to even reject the said recommendation of the Reddy Committee. If the Economic Times report is to be believed, the Narendra Modi Government appears to now have gone in the direction of taking the tough decision of formally rejecting the said recommendation of repealing the AFSPA.

It is pertinent to mention that in view of a hostile environment prevailing in the north-eastern states due to violence perpetrated by armed militant groups, the Government had thought it fit to give legal and logistic protection to the Armed Forces personnel posted on duty there so as to enable them to operate with required thrust and drive. The Armed Forces (Special Powers) Act, 1958 (AFSPA) accordingly came to be enacted and amended subsequently. At present, it is applicable in the disturbed areas in the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. In fact, AFSPA was withdrawn from the Imphal municipal area (consisting of seven Assembly constituencies) in the State of Manipur in August, 2004; thus, since then, it is applicable in Manipur only in the remainder of the State.

It may also be pointed out that in the case of Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109 : AIR 1998 SC 431, a Constitution bench of the Supreme Court had upheld the constitutional validity of the aforesaid Armed Forces (Special Powers) Act.

AFSPA gives power to the Central Government as well as Governors of the State Governments (where it is applicable) to declare areas affected by militancy, which are in disturbed or dangerous condition, as “disturbed areas”. The Act also confers special powers on the armed forces personnel operating in “disturbed areas” to search without warrant, as the operations against the militants call for surprise “attacks and searches” in places where heaps of arms are stocked. Process of getting warrants would alert the militants and would give the opportunity to change the venue. Similarly, the Act has other provisions necessary for the required level of empowerment to the Armed Forces personnel conducting counter-insurgency operations against heavily armed militants. The special powers of the armed forces are mentioned in Section 4 of AFSPA, which is reproduced below:

“4. Special powers of the armed forces.—Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,—

(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence;

(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;

(d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.”

Section 5 of AFSPA provides protection to the arrested person by laying down that any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest. So, once the arrested person is handed over to the police authorities, other legal protections available to such person under the ordinary criminal laws and the Constitution become automatically available to him.

Section 6 of AFSPA provides protection to the persons (i.e., the armed forces personnel) acting under this Act, by laying down that no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

Thus, AFSPA is a short Act consisting only of 6 sections. This Act is necessary to give some basic powers to the armed forces to act against militants operating in the north-east and also to give them some basic protection against malicious prosecution. In fact, similar powers and protection (with some variations) are available to the police officers under the Criminal Procedure Code. The fact remains that if you want the armed forces to be deployed within a disturbed area to deal with the militants, you have to give them the necessary legal powers to act against them and also some protection to save them from malicious prosecution. Therefore, AFSPA is nothing but a mechanism which is sine qua non to the deployment of armed forces in disturbed areas to deal with internal security challenges. The only other option is to not to deploy the armed forces for dealing with these internal problems and let the regular police forces (which may be augmented with sufficient resources and manpower) deal with such situation. It is unimaginable to expect the armed forces to deal with internal security threats (which is not their primary duty, since their primary duty is to deal with the external threats) without having even the basic legal powers to deal with the insurgents, and the requisite minimum protection against false prosecution.

It may be noteworthy that in addition to the aforesaid Armed Forces (Special Powers) Act, 1958, which is operative in the north-eastern States of India, there is another similar Act, called the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, which is operative only in the State of Jammu and Kashmir and which has more or less similar provisions. In addition to these two Acts, there was yet another similar Act called, the Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983, which was applicable to the State of Punjab and the Union Territory of Chandigarh, during the days of terrorism.

Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, and is author of 3 law books. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. Email: info@tilakmarg.com

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